# '~\ HARNEK SINGH v. STATE OF PUNJAB & ORS

- **Citation:** [1982] 2 S.C.R. 139
- **Court:** Supreme Court of India
- **Decided:** 1981-12-09
- **Bench:** A.D. KoSHAL, A.P. Sen, V. Balakrishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harnek-singh-v-state-of-punjab-ors-8877
- **Pages:** 3

## Headnote

i39
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974, S. 3(1)-Detention Order-Offences committed by detenu in February 1980Prosecutlon initiated under Penal Code-Detenu on bail and appearing before
Magistrate from February 1980 to July 1981-Detenu taken into custody only in
July 1981-Detention assailed in Court-Detention whether illegal and invalid.
The brother of the petitioner had been detained under sub-section (l) of
Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974. In the writ petition to this Court under Article 32 it was
contended that a case covering offences under Sections 307, 411 and 414 of the
Indian Penal Code was registered against the detenu, that those offences were the
only acts which formed the basis of the detention order and that there is consequently no nexus between the unlawful activity attributed to the detenu and his
incarceration.
Allowing the writ petition,
HELD : I. The detention takes the character of punitive rather than preventive action, and is therefore vitiated. [141 A]
2.
No reason has been put forward for the detenu not being taken into
custody in pursuance of detention order right from January 2, 1981 till July IO,
1981 although he appear~d in Court on all the days of hearing fixed by the
Magistrate during that period. (140 H; 141 A]
A
B
c
D
E
F
3. The offences which are said to have been committed by the detenu as
far back as February 27, 1980 could hardly form a ground for his detention on a
G
date as iate as July 10, 1981, the gap between the two being about a year and a
half. No explanation has been furnished by the State as to why action under the
Act was not taken at the earliest possible after the alleged commission of the
.._
offences which are the foundation of the grounds for detention. [140 F-G]
ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7444
pf 1981.
ff
A
B
c
D
E
G
H
140
SUPREME COURT REPORTS
(1982] 2 s.c.a.
(Under article 32 of the Constitution of India)
Hajinder Singh for the Petitioner.
O.P. Sharma M.S. Dhillon and R.N. Poddar for the Respondent.

## Text

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'~\
HARNEK SINGH
v.
STATE OF PUNJAB & ORS
December 9, 1981
(A.D. KoSHAL, A.P. SEN AND V. BALAKRISHNA
ERADI, JJ.]
i39
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974, S. 3(1)-Detention Order-Offences committed by detenu in February 1980Prosecutlon initiated under Penal Code-Detenu on bail and appearing before
Magistrate from February 1980 to July 1981-Detenu taken into custody only in
July 1981-Detention assailed in Court-Detention whether illegal and invalid.
The brother of the petitioner had been detained under sub-section (l) of
Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974. In the writ petition to this Court under Article 32 it was
contended that a case covering offences under Sections 307, 411 and 414 of the
Indian Penal Code was registered against the detenu, that those offences were the
only acts which formed the basis of the detention order and that there is consequently no nexus between the unlawful activity attributed to the detenu and his
incarceration.
Allowing the writ petition,
HELD : I. The detention takes the character of punitive rather than preventive action, and is therefore vitiated. [141 A]
2.
No reason has been put forward for the detenu not being taken into
custody in pursuance of detention order right from January 2, 1981 till July IO,
1981 although he appear~d in Court on all the days of hearing fixed by the
Magistrate during that period. (140 H; 141 A]
A
B
c
D
E
F
3. The offences which are said to have been committed by the detenu as
far back as February 27, 1980 could hardly form a ground for his detention on a
G
date as iate as July 10, 1981, the gap between the two being about a year and a
half. No explanation has been furnished by the State as to why action under the
Act was not taken at the earliest possible after the alleged commission of the
.._
offences which are the foundation of the grounds for detention. [140 F-G]
ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7444
pf 1981.
ff
A
B
c
D
E
G
H
140
SUPREME COURT REPORTS
(1982] 2 s.c.a.
(Under article 32 of the Constitution of India)
Hajinder Singh for the Petitioner.
O.P. Sharma M.S. Dhillon and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by : ·
KosHAL J. In this petition under Art. 32 of the Constitution
of India seeking the issuance of a writ of habeas corpus, the prayer
made by the petitoner is that his brother, Narinder Singh, who
has been detained in pursuance of an order dated 4th November,
1980 passed under sub-sec. (1) cf sec. 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
be released from custody. The main ground urged in support of
the petition is that there is no nexus between the unlawful activities
attributed
to the detenu and his incarceration. That ground
we do not find to be without sub!1tance.
A case covering offences
under sections 307, 411 and 414 of the Indian Penal Code, amongst
others, was registered against the detenu at Police Station Lopoke
in Amritsar district on 27th February, 1980 and those offences are
the only acts which form th(: basis of the impugned order
Those acts are also the subject-matter of a prosecution launched
against the detenu, proceedings in relation to which have been going
on in the Court of an Amritsar Magistrate. During those proceedings
the detenu was on bail and was appearing in court on every hearing
right from January 2, 1981 till he was put behind the bars on
10th July, 1981 in pursuance of the impugned order.
We are
clearly of the opinion that offenc:es which are said. to have been
committed by the detenu as far back as 27th February, 1980 could
hardly form a ground for his detiention on a date as late as 10th
July, 1981, the gap between the two being well-nigh a year and a
half.
No explanation at all has been furnished on behalf of the
State as to why action under the Act was not taken at the earliest
possible after the alleged commission of the offences which are the
foundation of the grounds for detention. In our opinion, the charge
is so stale in relation to the dete:ntion as not to have any real connection with it. It is further noteworthy that no reason is put
forward for the detenu not being taken in custody in pursuance of
the impugned order (for which the detaining authority was moved
in the first instance by the Senior Superintendent of Police, Amritsar)
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,,..
•
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,,
. --'\
HARNEK SINGH v. PUN.JAB (Koshal, i.)
i41
right form January 2, 1981 till July 10, 1981 although he appeared
in Court on all the dates of hearing fixed by the Magistrate during
that
period. In these circumstances
the detention takes the
character of punitive rather than preventive action and is therefore
vitiated.
Accordingly we strike down the impugned order and
direct that the detenu be released from custody forthwith.
N.V.K.
Petition allowed.
A
8